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A States’ Rights Advocate Upholds Obamacare David Cole John Springs On June 29, 2011, the first federal court of appeals to rule on the constitutionality of the Affordable Care Act, otherwise known as “Obamacare,” upheld the law by a vote of 2-1. Two more appellate court decisions are expected soon, and then the Supreme Court will have the final say. But the decision of the U.S. Court of Appeals for the Sixth Circuit is the most important to date, and may be a bellwether for the law’s eventual fate. Much as I argued in The New York Review, the two judges in the majority concluded that prior Supreme Court precedents clearly support Congress’s broad power under the Commerce Clause to ensure the functioning of its health care insurance reform law by requiring those who can afford insurance to buy it.

But more significant than the judges’ reasoning is the judge who cast the deciding vote – Judge Jeffrey Sutton. Had those challenging the law been asked to name their “dream judge” for this appeal, they would almost certainly have named Sutton. It’s not only that he is a Republican, a former law clerk to Justice Antonin Scalia, an appointee of President George W. Bush, and an active member of the Federalist Society. Sutton made his name litigating for states’ rights. As Ohio State Solicitor and as a lawyer in private practice, Sutton appeared repeatedly in the Supreme Court arguing for expansive views of states’ rights. He won the case that held that Congress could not apply the Age Discrimination Act to state employers, because it interfered with state sovereign prerogatives. He wrote an amicus brief arguing successfully that Congress lacked the power to enact the Violence Against Women Act, again because such legislation must be left to the states. From the mid-1990s until he was nominated to the Sixth Circuit, Sutton was the go-to guy on state’s rights among Supreme Court advocates. As he told the Legal Times in an interview, “I love these issues. I really believe in this federalism.” So who could be more predisposed to favor the Affordable Care Act challengers’ claim that Congress impermissibly intruded on the states’ legislative domain by requiring individuals to buy health care insurance? Yet while Sutton sympathetically described the claimant’s challenge – their lawyers, after all, are among his closest political and legal friends – he concluded that the purchase of health insurance is a proper subject of federal regulation, and not a matter exclusively for the states. He noted that the Court had previously ruled that under its power to regulate “interstate commerce,”Congress could limit a farmer’s right to grow wheat for his own consumption, and could prohibit the growing of marijuana for personal medicinal use, on the theory that such actions, when aggregated, affect interstate commerce. Sutton reasoned that the decision not to buy health insurance and thereby to impose one’s future health care costs on others, which led to $43 billion in uncompensated care in 2008 alone, has an even more dramatic effect on interstate commerce, and so should be regulated by Congress.

Furthermore, Judge Sutton systematically demolished the fundamental premise of the challengers’ argument – that while Congress can regulate economic “activity” under the Commerce Clause, it cannot regulate “inactivity”—the choice not to buy insurance. Sutton set forth six separate reasons for why the purported distinction between “inaction” and “action” is not a coherent demarcation of Congress’s power to regulate commerce. Among them, he noted, is the fact that Congress has the authority to prescribe as well as to proscribe, and both forms of regulation can apply to “inaction.” Thus, Congress can require former sex offenders to register, and can compel those who possess drugs to dispose of them if Congress makes them illegal, even though both forms of regulation might be characterized as requiring people engaged in “inaction” to act. More importantly, he noted, “No one is inactive when deciding how to pay for health care, as self-insurance and private insurance are two forms of action for addressing the same risk. Each requires affirmative choices; one is no less active than the other; and both affect commerce.”

The significance of Sutton’s opinion cannot be underestimated. Until now, with one important exception – Harvard Law professor Charles Fried, former solicitor general under President Reagan, who told a Senate committee in February that the law was plainly constitutional — reaction to the health care law has been divided along partisan lines, in Congress, the courts, and the public at large. Two Republican judges have declared the law unconstitutional. Several Democratic judges have upheld it. The fact that Judge Sutton, a Republican, a Federalist, and perhaps the nation’s leading states’ rights advocate, was singularly unimpressed by the challengers’ principal argument should be cause for relief among those who support the law – and should send tremors through the ranks of those who thought they could use the label of “states’ rights” to defeat the law in the courts.

The Republicans have changed American politics since they took control of the House of Representatives. They have put spending restraint and debt reduction at the top of the national agenda. They have sparked a discussion on entitlement reform. They have turned a bill to raise the debt limit into an opportunity to put the U.S. on a stable fiscal course. Josh Haner/The New York Times David Brooks Go to Columnist Page »David Brooks’s Blog The intellectual, cultural and scientific findings that land on the columnist’s desk nearly every day.Go the Blog » Related

Republican leaders have also proved to be effective negotiators. They have been tough and inflexible and forced the Democrats to come to them. The Democrats have agreed to tie budget cuts to the debt ceiling bill. They have agreed not to raise tax rates. They have agreed to a roughly 3-to-1 rate of spending cuts to revenue increases, an astonishing concession. Moreover, many important Democrats are open to a truly large budget deal. President Obama has a strong incentive to reach a deal so he can campaign in 2012 as a moderate. The Senate majority leader, Harry Reid, has talked about supporting a debt reduction measure of $3 trillion or even $4 trillion if the Republicans meet him part way. There are Democrats in the White House and elsewhere who would be willing to accept Medicare cuts if the Republicans would be willing to increase revenues. If the Republican Party were a normal party, it would take advantage of this amazing moment. It is being offered the deal of the century: trillions of dollars in spending cuts in exchange for a few hundred million dollars of revenue increases. A normal Republican Party would seize the opportunity to put a long-term limit on the growth of government. It would seize the opportunity to put the country on a sound fiscal footing. It would seize the opportunity to do these things without putting any real crimp in economic growth. The party is not being asked to raise marginal tax rates in a way that might pervert incentives. On the contrary, Republicans are merely being asked to close loopholes and eliminate tax expenditures that are themselves distortionary. This, as I say, is the mother of all no-brainers. But we can have no confidence that the Republicans will seize this opportunity. That’s because the Republican Party may no longer be a normal party. Over the past few years, it has been infected by a faction that is more of a psychological protest than a practical, governing alternative. The members of this movement do not accept the logic of compromise, no matter how sweet the terms. If you ask them to raise taxes by an inch in order to cut government by a foot, they will say no. If you ask them to raise taxes by an inch to cut government by a yard, they will still say no. The members of this movement do not accept the legitimacy of scholars and intellectual authorities. A thousand impartial experts may tell them that a default on the debt would have calamitous effects, far worse than raising tax revenues a bit. But the members of this movement refuse to believe it. The members of this movement have no sense of moral decency. A nation makes a sacred pledge to pay the money back when it borrows money. But the members of this movement talk blandly of default and are willing to stain their nation’s honor. The members of this movement have no economic theory worthy of the name. Economists have identified many factors that contribute to economic growth, ranging from the productivity of the work force to the share of private savings that is available for private investment. Tax levels matter, but they are far from the only or even the most important factor. But to members of this movement, tax levels are everything. Members of this tendency have taken a small piece of economic policy and turned it into a sacred fixation. They are willing to cut education and research to preserve tax expenditures. Manufacturing employment is cratering even as output rises, but members of this movement somehow believe such problems can be addressed so long as they continue to worship their idol. Over the past week, Democrats have stopped making concessions. They are coming to the conclusion that if the Republicans are fanatics then they better be fanatics, too. The struggles of the next few weeks are about what sort of party the G.O.P. is — a normal conservative party or an odd protest movement that has separated itself from normal governance, the normal rules of evidence and the ancient habits of our nation. If the debt ceiling talks fail, independents voters will see that Democrats were willing to compromise but Republicans were not. If responsible Republicans don’t take control, independents will conclude that Republican fanaticism caused this default. They will conclude that Republicans are not fit to govern. And they will be right.

Luge,I know there has been a lot of flooding but why are the city park baseball fields, or Kiwanis Fields, not being used this year? They have been used after floods and repaired several times before. Just wondering. By the way, we really enjoy the extension on the walking trail, it provides a great workout.